Scotland’s minister for victims and community safety has said people “could be investigated” for misgendering someone online under a new hate crime law which came into effect on Monday.

MSPs passed the Hate Crime and Public Order (Scotland) Act in 2021, consolidating existing hate crime legislation and creating a new offence of stirring up hatred against protected characteristics, although sex has been omitted in favour of a standalone Bill designed to tackle misogyny.

Asked whether misgendering someone on the internet was a crime under the new law, Scotland’s minister for victims and community safety Siobhian Brown told BBC Radio 4’s Today Programme: “It would be a police matter for them to assess what happens.

“It could be reported and it could be investigated – whether or not the police would think it was criminal is up to Police Scotland.”

The Ayr MSP added: “There is a very high threshold which is in the Act which would be up to Police Scotland, and what would have to be said online or in person would be threatening and abusive.”

Asked why women had not been included in the new legislation, Ms Brown said: “We’ll be going further for the protection of women through our misogyny Bill, which will be laid down in Parliament.”

Human rights campaigner Peter Tatchell told the same programme the omission of women from the new law was an “astonishing exclusion”.

He added: “The big flaw in this Bill is it does not protect women against hate.”

Mr Tatchell also criticised the new law allowing third-party reporting.

He said: “With anonymity being granted, this could open the door to vexatious and malicious complainants who will go after people and use the third-party centre as a way of getting back at people.”

A stirring-up offence on the basis of race has been on the statute book in Scotland since 1986 but the legislation has raised concerns about a potential chilling of free speech.

Siobhian Brown
Siobhian Brown said there is a ‘high threshold’ for prosecution under the new law (Jane Barlow/PA)

Prominent critics include author JK Rowling, podcaster Joe Rogan and Elon Musk, the owner of X – formerly Twitter.

The Association of Scottish Police Superintendents (ASPS) also warned of the risk of vexatious complaints.

In a letter to Holyrood’s Justice Committee, they said the law could be “weaponised” by an “activist fringe” across the political spectrum.

First Minister Humza Yousaf told the PA news agency on Friday: “I would say to anybody who thinks they are a victim of hatred, we take that seriously, if you felt you are a victim of hatred, then of course reporting that to police is the right thing to do.

“If you’re thinking about making a a vexatious complaint, if you’re thinking about making a complaint and there’s no merit in that, then do know that the police will take that serious in terms of tackling vexatious complaints, and so I would urge you not to do it.”

The First Minister has repeatedly said there is “disinformation” being spread about the Bill and what it entails, claiming there is a “triple lock” of protection for speech.

This includes an explicit clause, a defence for the accused’s behaviour being “reasonable” and that the Act is compatible with the European Convention on Human Rights.

The Scottish Police Federation (SPF) has claimed training for officers is not adequate.

Humza Yousaf
The First Minister warned against vexatious complaints being made under the Act (Jane Barlow/PA)

The Act has been a running sore for the SNP-led government in recent years, with a number of changes having to be made before it was passed and the three-year gap before it came into effect.

Critics, many of whom including the Harry Potter author hold gender-critical views, have said it would be weaponised against them.

SNP MP Joanna Cherry has previously said being under police investigation could be a punishment in itself.

Scottish Tory justice spokesman Russell Findlay –  who along with his party has been an ardent opponent of the law – said: “Officers would rather tackle real crimes and keep communities safe, rather than having to investigate malicious and spurious complaints.

“Humza Yousaf should bin his Hate Crime Act and instead divert resources towards frontline policing which is at breaking point.”

Police Scotland Chief Constable Jo Farrell, speaking at a meeting of the Scottish Police Authority board, said the force would apply the Act “in a measured way”.

She added there would be “close scrutiny” of how the legislation is being enforced as well as what reports are being received.